The suit, filed by Indiana Attorney General Todd Rokita, could have cost Dr. Caitlin Bernard her license, but the seven-member board found her fit to continue practicing medicine. Most of the board agreed on the privacy law issue, and they unanimously agreed on the reporting fee. She will be fined $3,000 and receive a reprimand.
The board, which is appointed by the governor, has 90 days to finalize its decision, after which both sides have 30 days to appeal to Marion Superior Court.
Example: The medical board must hear Minister of Justice Todd Rokita’s case against the abortion doctor
10-year-old rape victim’s story became national news
The girl’s story appeared in a July 2022 IndyStar article about reduced access to abortion following the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health decision. From there, abortion rights advocates and politicians, including President Joe Biden, used the story to support their arguments, while some conservatives questioned whether the story was true.
Indiana Deputy Attorney General Cory Voight told the medical licensing board at Thursday’s hearing that as a result of Bernard’s disclosure, “everyone — the country — learned about her patient. Learned that a 10-year-old little girl was raped and had an abortion.”
Voight also said Bernard’s failure to immediately report the child abuse resulted in “a child returning to live with her rapist for five days in Ohio.”
Bernard’s attorney, Alice Morical, said Bernard properly reported abuse “as she does in all cases.” On the day she spoke with an Ohio doctor who wanted to refer the patient to her, Bernard told an IU Health social worker, Morical said, in accordance with IU health policy.
Rokita, who vowed to investigate Bernard in an appearance on the Fox News show “Jesse Watters Primetime” shortly after the IndyStar story was first published, was not present at the hearing.
However, Bernard testified.
“I think it’s incredibly important for people to understand the real-world effects of this country’s laws,” Bernard said when Rokita’s lawyers asked why she didn’t share a hypothetical story with the IndyStar reporter instead of an actual one patient’s history.
“That’s not your patient’s conclusion, is it?” Voight replied.
“I don’t know what her conclusion would be,” Bernard said. “But I would imagine that she would also have knowledge and experience of the impact that anti-abortion laws in (her state) Ohio could have on her.”
American Medical Association official testifies to ethical commitment
Bernard’s employer, IU Health, said she did not violate HIPAA privacy laws. Her attorneys noted that she reported the girl’s abuse on a state form, and it had already been reported to law enforcement in Ohio, where the crimes occurred. A suspect was subsequently arrested and charged in Ohio.
Peter Schwartz, chairman of the Council of Ethical & Judicial Affairs at the American Medical Association, said Thursday that Bernard had an “affirmative” obligation to speak out when faced with the “most compelling … ethical dilemma of our lifetime, ” referring to the termination of the right to abortion.
An expert witness for the state — Andrew Mahler, a former official at the federal Office for Civil Rights — said the doctor violated federal privacy laws because it is “certainly possible” the girl could have been identified based on the facts Bernard gave the IndyStar reporter. The reporter, Shari Rudavsky, said in a videotaped testimony that Bernard did not give her any information beyond what was made public.
Another of Bernard’s expert witnesses, Paige Joyner, a confidentiality officer and former auditor for the Office for Civil Rights, disagreed with Mahler.
“The information she shared was age, gender and condition,” Joyner said. “It is not protected health information.”
Call IndyStar court reporter Johnny Magdaleno at 317-273-3188 or email him at [email protected]. Follow him on Twitter @IndyStarJohnny
This article originally appeared on the Indianapolis Star: Indiana abortion doctor violated privacy law, medical board rules